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Americans With Disabilities Act

Summary

Under the equal employment provisions of the ADA (Title I), it is unlawful for an employer to discriminate against a qualified individual with a disability. Like most discrimination statutes, the prohibition applies to conduct involving applicants and employees in the terms, privileges and conditions of employment. It is also unlawful to discriminate against an non-disabled individual because of that person’s association with a disabled individual. See 29 C.F.R. § 1630.8.

A qualified individual with a disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

An individual is disabled under the ADA if he or she has:

a physical or mental impairment that substantially limits one or more major life activity (e.g., breathing, seeing, hearing, caring for self, walking);

An employer must reasonably accommodate a disabled employee’s functional limitations unless doing so would impose an undue hardship on the employer. Whether and when an employer must provide a reasonable accommodation is fact specific. When the obligation to accommodate arises, the employer must engage the employee in an interactive process to determine whether and what accommodation is reasonable.

The ADA also regulates the manner and method by which an employer may question employees, including by administering employee physicals and other medical examinations. See 29 C.F.R. § 1630.13 & 1630.14.

Jurisdiction

An employer (a person engaged in an industry affecting commerce) must have fifteen or more employees for each working day in each of twenty or more calendar weeks (in the current or preceding calandar year) to be covered by the ADA.

Americans with Disabilities Act Amendments Act

The Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) was signed into law on September 25, 2008. The purpose of the act was to correct judicial interpretation of the ADA which had narrowed the number of individuals who fell within the definition of “disabled”. See Sutton v. Am. Arines, Inc., 527 U.S. 471 (1999) and Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The act was to shift focus from a determination as to whether or not an individual was disabled in place the burden on employers to demonstrate that they were in compliance with the law.

Damages

Drug Use and the ADA

The ADA does not protect anyone who is currently using illegal drugs, nor does it prevent an employer from testing its employees for current illegal drug use.

Interview Questions Under the ADA

An employer cannot ask you if you are disabled during an interview. Likewise, if your disability is self-evident (e.g., your in a wheelchair), an employer cannot ask you about your condition, including how sever it may be.

That’s not to say that an employer cannot ask perfectly reasonable questions about your ability to do your job. For example, can you stand for long periods of time? An employer can also ask you to describe how you would perform the duties. If you need an accommodation to do the job in question, you can describe that. The point is that you cannot be excluded from a job simply because you are disabled (again, as defined by the law).

Medical Exams Under the ADA

You cannot be forced to take a medical examination before you are offered a job, but the company may make that a condition of the job offer (so long as the same condition applies to everyone who is offered the job). If your disability is disclosed during the examination, you cannot be rejected if you can perform the job in question (again, its essential functions) with a reasonable accommodation.

You can only be forced to take a medical examination after you have been hired if the exam is related to your job and something the employer needs to do for a business reason. Of course, you can volunteer for such exams (e.g., for health insurance purposes).The results of all medical examinations must be kept confidential, and maintained in separate medical files.